National Insurance Company Ltd. vs Bindrawan
2023 Latest Caselaw 5434 MP

                          1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 1st OF APRIL, 2023
                MISC. APPEAL No. 712 of 2022

BETWEEN:-

NATIONAL    INSURANCE     COMPANY LTD.
THROUGH DEPUTY MANAGER T.P. HUB HAVING
DIVISIONAL OFFICE AT VIJAY NAGAR,
JABALPUR (M.P.) (MADHYA PRADESH)
                                               .....APPELLANT
(BY SMT.ASGHARI KHAN - ADVOCATE)

AND

1.    BINDRAWAN S/O HALKU AHIRWAR, AGED
      ABOUT 55 YEARS, OCCUPATION: NIL R/O
      GRAM CHURYARI, POLICE STATION
      SARWAI, DISTRICT CHHATARPUR (M.P.)
      (MADHYA PRADESH)

2.    SMT. MAYA W/O BINDRAWAN AHIRWAR,
      AGED ABOUT 50 YEARS, OCCUPATION: NIL
      R/O GRAM CHURYARI, POLICE STATION
      SARWAI, DISTRICT CHHATARPUR (M.P.)
      (MADHYA PRADESH)

3.    MUNNI W/O LATE RAMESH AHIRWAR,
      AGED ABOUT 24 YEARS, OCCUPATION: NIL
      R/O GRAM CHURYARI, POLICE STATION
      SARWAI, DISTRICT CHHATARPUR (M.P.)
      (MADHYA PRADESH)

4.    SHIVAM S/O LATE RAMESH AHIRWAR,
      AGED ABOUT 4 YEARS, OCCUPATION:
      MINORS THROUGH NATURAL GUARDIAN
      MOTHER MUNNI WD/O RAMESH AHIRWAR
      R/O GRAM CHURYARI, POLICE STATION
      SARWAI, DISTRICT CHHATARPUR (M.P.)
                                    2


         (MADHYA PRADESH)

   5.    SACHIN S/O LATE RAMESH AHIRWAR,
         AGED ABOUT 4 YEARS, OCCUPATION:
         MINORS THROUGH NATURAL GUARDIAN
         MOTHER MUNNI WD/O RAMESH AHIRWAR
         R/O GRAM CHURYARI, POLICE STATION
         SARWAI, DISTRICT CHHATARPUR (M.P.)
         (MADHYA PRADESH)

   6.    LAKKHU @ BHONDALL @ PANKAJ PATEL
         S/O SHIVNARAYAN PATEL, AGED ABOUT
         27 YEARS, OCCUPATION: NIL      R/O
         BAHADURPUR POLICE STATION SARWAI
         DISTRICT CHHATARPUR M.P. (MADHYA
         PRADESH)

   7.    KULDEEP S/O SHIVNARAYAN PATEL
         OCCUPATION: NIL R/O BAHADURPUR
         POLICE STATION SARWAI DISTRICT
         CHHATARPUR M.P. (MADHYA PRADESH)
                                                          .....RESPONDENTS
   (RESPONDENTS NO.1 TO 3 BY SHRI L.N.SAKLE - ADVOCATE)
   (NONE FOR OTHER RESPONDENTS)

         This appeal coming on for admission this day, the court passed the
   following:
                                   ORDER

1. This Misc. Appeal under section 173 of the Motor Vehicles Act has been filed against the award dated 18.2.2020 passed by Member, Motor Accident Claims Tribunal, Lavkush Nagar, District Chhattarpur in M.A.C.C.No.26/2018.

2. Since the factum of accident is not in dispute, therefore, it is suffice to mention here that on 11.5.2018 deceased died in a vehicular accident.

3. Challenging the award passed by the Claims Tribunal it is submitted by counsel for the appellant that an offence under section 3 read with section 181 of the M.V.Act was also registered along with offence

under sections 304-A, 279, 337 of the I.P.C. which clearly indicates that even the police could not recover the licence of the driver of the offending vehicle.

4. It is further submitted that even the driver and owner of the offending vehicle did not appear before the Claims Tribunal and the driving licence of the driver was never produced by the driver and owner of the offending vehicle. Even the Claims Tribunal in para 15 of its award has come to a conclusion that the vehicle was being driven without any valid driving licence. Accordingly, it is submitted that after having come to a conclusion that the driver of the offending vehicle was not having a valid driving licence should not have held the Insurance Company as jointly and severally liable to pay the compensation amount.

5. Per contra, the appeal is vehemently opposed by counsel for the respondents/claimants.

6. Considered the submissions made by counsel for the parties.

7. In para 15 of the impugned award the Claims Tribunal after considering various aspects of the matter has come to a conclusion that it cannot be presumed that the driver of the offending vehicle was having a valid driving licence.

8. Thus, it is clear that there was a violation of the Insurance policy. However, the Claims Tribunal even after coming to a conclusion that driver of the offending vehicle was not having a valid driving licence did not consider the effect of the same and held that Insurance Company is jointly and severally responsible for payment of compensation amount.

9. In the considered opinion of this Court, once the offending vehicle was being driven in violation of the conditions of the Insurance policy then the Insurance Company cannot be held liable to pay the compensation amount.

10. Accordingly, the Insurance Company is exonerated from its liability. However, in the light of the judgment passed by the Supreme court in the case of New India Assurance Co., Shimla V. Kamla and others, reported in AIR 2001 SC 1419, it is held that compensation amount shall be paid by the Insurance Company with liberty to recover the same from the driver and owner of the offending vehicle.

11. With aforesaid direction, the award 18.2.2020 passed by Member, Motor Accident Claims Tribunal, Lavkush Nagar, District Chhattarpur in M.A.C.C.No.26/2018 is hereby affirmed.

12. The appeal succeeds and is allowed to the extent mentioned above.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.04.01 17:58:36 +05'30' HS